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“Suspicionless Search And Seizure”: The Supreme Court Rules That DNA Is Like A Fingerprint Or Mugshot

In a  5-4 decision, the U.S. Supreme Court has ruled that police have the right to gather DNA evidence without a search warrant after an arrest and before the arrestee has been convicted of a crime. The majority ruled that a cheek swab is no different from taking a fingerprint or a photograph.

Already 26 states collect DNA samples from suspects, a fact that had gone mostly unnoticed until 26-year-old Alonzo King was arrested in Maryland for second-degree assault in 2009. Maryland authorities took a DNA swab from King while he was in custody, and after running it through the state’s and the FBI’s databases, they found that it matched DNA from an unsolved rape committed in 2003.

The U.S. Supreme Court’s decision on Monday reversed a 2012 Court of Appeals decision in which Maryland’s highest court ruled in King’s favor, stating that the DNA swab was used for investigative purposes after his arrest—this was in direct violation of his Fourth Amendment rights, as he had not been convicted of any crime and was still presumed innocent.

Groups including DNA Saves have been advocating for the DNA swabbing of arrestees as a means to close unsolved cases, citing statistics that most crimes are committed by repeat offenders.

Justice Anthony Kennedy was among the five Justices who voted to reverse Maryland’s decision. “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Kennedy wrote. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined Justice Antonin Scalia in his written opposition to the court’s decision. His dissent began, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi­nating evidence. That prohibition is categorical and with­out exception; it lies at the very heart of the Fourth Amendment.”

Scalia’s defense of the Fourth Amendment continued in his scathing dissent: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the pro­tection of our people from suspicionless law-enforcement searches.”

The dissenting Justices warned of likening DNA sampling to fingerprinting and taking photographs. They aimed to differentiate between methods of identifying and investigating an individual after their arrest and before a trial.

New technologies are increasingly presenting privacy challenges that complicate the typical conservative/liberal alliances on the Court.

USA Today reports, “Last year, they held that police could not attach a GPS tracking device to a car in order to monitor a suspect’s movements. This year, they ruled that using a drug-sniffing dog with reasonable suspicion was OK — but not at the door of a private home. And they decided that executing a search warrant after a suspect had left his home was out of bounds.”

Of course the major difference between last year’s decisions and the one the Supreme Court reached today is that DNA swabs may be used by authorities to implicate an arrestee in crimes for which they have no warrant or reasonable suspicion. In this way, the majority found, a DNA swab is similar to the procedural tasks of taking a fingerprint or a mugshot.

The minority warned of the broader implications of the decision.

“Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote in his dissent. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”

By: Allison Brito, June 3, 2013

June 5, 2013 Posted by | Civil Rights, Supreme Court | , , , , , , , | Leave a comment

“Sotomayor, Kagan Ready For Battles”: You May Have The Votes Conservatives, But You’re Going To Have A Fight

For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.

As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan.

The acerbic Scalia, the court’s longest-serving justice, got his latest comeuppance Wednesday morning, as he tried to make the absurd argument that Congress’s renewal of the Voting Rights Act in 2006 by votes of 98 to 0 in the Senate and 390 to 33 in the House did not mean that Congress actually supported the act. Scalia, assuming powers of clairvoyance, argued that the lawmakers were secretly afraid to vote against this “perpetuation of racial entitlement.”

Kagan wasn’t about to let him get away with that. In a breach of decorum, she interrupted his questioning of counsel to argue with him directly. “Well, that sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”

Scalia replied to Kagan, “Or decided that perhaps they’d better not vote against it, that there’s nothing, that there’s no — none of their interests in voting against it.”

Justice Stephen Breyer defused the tension. “I don’t know what they’re thinking exactly,” he said, changing the subject.

The styles of the two Obama appointees are different. Sotomayor is blunt and caustic, repeatedly interrupting. In an opinion this week, she harshly criticized a Texas prosecutor for a racist line of questioning. She has been on the interview circuit publicizing her memoir.

Kagan is choosier about when to interject herself, but she’s sardonic and sharp-witted. (“Well, that’s a big, new power that you are giving us,” she said, mockingly, when a lawyer tried to argue that the justices should overrule Congress’s discrimination findings.)

Both are more forceful than the Clinton appointees, the amiable Breyer and the frail Ruth Bader Ginsburg. The two new justices are sending a message to the court’s conservative majority: You may have the votes, but you’re going to have a fight.

Wednesday’s voting rights case was typical. Surprisingly, the five conservative justices seemed willing to strike down a landmark civil rights law (the provision that gives extra scrutiny to states with past discrimination) that was renewed with near-unanimous votes in Congress. Conservative jurists usually claim deference to the elected branches, but in this case they look an awful lot like activist judges legislating from the bench.

Sotomayor allowed the lawyer for the Alabama county seeking to overturn the law to get just four sentences into his argument before interrupting him. “Assuming I accept your premise — and there’s some question about that — that some portions of the South have changed, your county pretty much hasn’t,” she charged. “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”

Moments later, Kagan pointed out that “Alabama has no black statewide elected officials” and has one of the worst records of voting rights violations.

Scalia and Justice Samuel Alito tried to assist the Alabama county’s lawyer by offering some friendly hypotheticals, but Sotomayor wasn’t interested in hearing that. “The problem with those hypotheticals is obvious,” she said, because “it’s a real record as to what Alabama has done to earn its place on the list.”

Sotomayor continued questioning as if she were the only jurist in the room. “Discrimination is discrimination,” she informed him, “and what Congress said is it continues.”

At one point, Justice Anthony Kennedy tried to quiet her. “I would like to hear the answer to the question,” he said. The lawyer got out a few more sentences — and then Kagan broke in.

Sotomayor continued to pipe up, even when Solicitor General Donald Verrilli was defending the Voting Rights Act — at one point breaking in as Alito was attempting to speak. Chief Justice John Roberts overruled her. “Justice Alito,” he directed.

Scalia was not about to surrender his title of worst-behaved justice. He mocked the civil rights law as he questioned the government lawyer. “Even the name of it is wonderful,” he said. “The Voting Rights Act: Who is going to vote against that?” (Verrilli cautioned him not to ignore actual votes of Congress in favor of “motive analysis.”)

But Scalia’s mouth was no longer the loudest in the room. When the Alabama county’s lawyer returned for his rebuttal, he managed to utter only five words — “Thank you, Mr. Chief Justice” — before Sotomayor broke in.

 

By: Dana Milbank, Opinion Writer, The Washington Post, February 27, 2013

March 2, 2013 Posted by | SCOTUS | , , , , , , , , | Leave a comment

“Influence Game”: NRA Putting Its Stamp On Another Branch Of Government

The National Rifle Association has enjoyed high-profile success over the years in shaping gun-rights legislation in Congress and statehouses, in part by campaigning to defeat lawmakers who defied the group.

Now, the NRA has added a lesser-known strategy to protect its interests: opposing President Barack Obama’s judicial nominees whom it sees as likely to enforce gun-control laws. In some cases, the group’s opposition has kept jobs on federal benches unfilled.

Still in its early stages, the effort is a safety net to ensure that federal courthouses are stocked with judges who are friendly to gun rights, should gun restrictions somehow get through the group’s first line of defense on Capitol Hill. The NRA also weighs in on state judicial elections and appointments, another fail-safe if the massacre of young children at a Newtown, Conn., elementary school leads to tighter gun-control measures.

A case study in the group’s approach across the country can be found in its opposition to the nominations of the two most recent Supreme Court justices.

The NRA opposed both Sonia Sotomayor and Elena Kagan and warned its allies in Congress that their votes to confirm each would be held against them.

In a letter to lawmakers, the NRA wrote: “In testimony before the Senate Judiciary Committee, (Kagan) refused to declare support for the Second Amendment, saying only that the matter was ‘settled law.’ This was eerily similar to the scripted testimony of Justice Sonia Sotomayor last year, prior to her confirmation to the court. It has become obvious that ‘settled law’ is the scripted code of an anti-gun nominee’s confirmation effort.”

It added, “The NRA is not fooled.”

The group had limited evidence to back up its claims that the two were opposed to gun rights. It pointed to a one-paragraph memo Kagan wrote in 1987 to Justice Thurgood Marshall that suggested she was not sympathetic to gun owners, and to her time as a lawyer in the Clinton administration as it sought to put tighter gun controls in place. For Sotomayor, critics cited a ruling that upheld New York’s ban on nunchucks, a martial arts weapon that has nothing to do with firearms.

Even some pro-gun-rights lawmakers bristled at the NRA inserting itself into judicial confirmation battles.

“I am a bit concerned that the NRA weighed in and said they were going to score this. I don’t think that was appropriate,” Republican Sen. Lisa Murkowski of Alaska said at the time. “A vote on a Supreme Court justice, in my mind, should be free from those political interest groups that are going to pressure you.”

But, like most Republicans, she still voted against confirming both nominees, likely for reasons beyond the gun issue.

Only seven GOP senators voted for Sotomayor in 2009 and, a year later, only five Republicans voted for Kagan.

Among those who supported both was Sen. Richard Lugar, a six-term Indiana Republican who lost his seat last year in a primary.

The NRA exacted its revenge in that race, spending $200,000 against him in order to help GOP challenger Richard Mourdock.

“Dick Lugar has changed. He’s become the only Republican candidate in Indiana with an F rating from the NRA,” the group said in one TV ad. The group also warned allies that Lugar voted to confirm “both of Barack Obama’s anti-gun nominees to the U.S. Supreme Court.”

Last spring, the group opposed the nomination of Elissa Cadish to the federal bench in Nevada and worked with Sen. Dean Heller of Nevada to block it.

In 2008, while running for a district court position in Nevada, Cadish replied on an election-year survey that “I do not believe that there is this constitutional right” to guns. She added, however, “Of course, I will enforce the laws as they exist as a judge.”

Cadish completed the Citizens for Responsible Government questionnaire before the Supreme Court ruled in 2008 that the Second Amendment protected a citizen’s right to have firearms in the District of Columbia and before a 2010 case that gave the same rights to citizens who live in the states.

Four years later, when Obama nominated her to a federal bench, she faced questions about those views and sought to clarify her position in a letter to her state’s other senator, Harry Reid.

“I want to assure you that I was not giving my personal opinion on this question,” Cadish said. “Rather, this response was based on my understanding of the state of federal law at the time.”

The NRA questioned the sincerity of Cadish’s statement.

“While she has more recently tried to backtrack from that statement, her ‘new’ position is of little comfort to gun owners,” NRA executive director Chris Cox wrote to Heller in April.

In the months that followed, the NRA and its affiliated groups spent $98,467 to help Heller win election, including a television ad promising Heller would “oppose any anti-gun nominee to the Supreme Court.”

“This election’s not about the next four years. It’s about the next 40 years. So vote like your freedom depends on it. Because it does,” Cox told audiences in that ad.

Similarly, the NRA has helped block Caitlin Halligan’s rise from the Manhattan district attorney’s office to the U.S. Court of Appeals for the District of Columbia Circuit, a launching pad for several Supreme Court justices. The group pointed to her work on New York’s 2001 lawsuit against gun makers and opposition to a 2005 federal law that shielded firearm companies from liability for crimes committed with their wares.

“Given Ms. Halligan’s clear opposition to a major federal law that was essential to protecting law-abiding Americans’ right to keep and bear arms, as well as an important industry that equips our military and law enforcement personnel, we must respectfully oppose her confirmation,” Cox wrote the lawmakers in 2011.

That appeals court seat has remained vacant since 2005, when President George W. Bush nominated and the Senate confirmed John Roberts as chief justice on the Supreme Court.

Last Thursday, Obama renominated both Cadish and Halligan and urged the Senate to vote.

“I am renominating 33 highly qualified candidates for the federal bench, including many who could have and should have been confirmed before the Senate adjourned,” Obama said.

Yet there was no signal the NRA would drop its opposition.

The group’s deep pockets help bolster allies and punish lawmakers who buck them, on judges or legislation. The group spent at least $24 million in the 2012 elections — $16.8 million through its political action committee and nearly $7.5 million through its affiliated Institute for Legislative Action. Separately, the NRA spent some $4.4 million through July 1 to lobby Congress.

In one case, the group spent about $100,000 — a tremendous sum for a state legislative race — to mount a primary challenge against a Republican Tennessee lawmaker, Debra Maggart, because she wouldn’t toe the NRA’s line in Nashville.

As the NRA works to put its stamp on another branch of government, its influence could be even more lasting — federal judges are appointed for life and aren’t subject to voters in election years.

 

By: Philip Elliott, The Associated Press, January 9, 2012

January 13, 2013 Posted by | Guns, Judges | , , , , , , , | Leave a comment

“Openly And Repeatedly Mocked”: What The Supreme Court Thinks Of Congress

The Supreme Court spent the first part of the morning debating the “severability” question, and as Lyle Denniston reported, we learned a bit from the proceedings — most notably what the justices think of Congress.

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.

A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

Of particular interest was the justices’ opinions of Congress — it turns out, American voters aren’t the only ones who hold lawmakers in low regard — which was characterized as an institution incapable of creating a new health care law. Denniston added, “Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or the hypothetical Congress.”

I’d also note that Kagan complained at one point about “the complex parliamentary shenanigans that go on across the street.”

How dysfunctional is Congress? The legislative branch is now being openly and repeatedly mocked by Supreme Court justices during oral arguments — eliciting laughter from those in attendance.

Congress, they were laughing at you, not with you.

 

By: Steve Benen, The Maddow Blog, March 28, 2012

March 30, 2012 Posted by | Congress, Supreme Court | , , , , , , | 1 Comment

Narrowly Dodged Bullets: John Roberts’s Dissenting Opinions

Activism at it's best...and you're worried about Elena Kagan?

Chief Justice John Roberts once again presided over a banner Supreme Court term for wealthy corporate interests. In the term ending today, a 5-4 Roberts Court unleashed a flood of corporate money into American democracy in Citizens United v. FEC. And the same five conservative justices strengthened corporate America’s power to force consumers and workers into a secretive, privatized court system that overwhelming favors corporations in Rent-a-Center v. Jackson.

Yet Roberts’s 5-4 giveaways to corporate America only tell half the story. Indeed, Roberts has authored or joined numerous radical dissents that would give powerful corporate interests sweeping immunity from the law. This stands in stark contrast to his confirmation hearing promise to display “humility” and accept his own “modest role” as a justice.

  • Immunity for drug companies: A dangerous drug was injected into the arm of a woman named Diana Levine in 2000, eventually costing her half her right arm and her career as a professional musician. A Vermont jury ordered the drug’s manufacturer to compensate Levine, but Roberts joined a dissent in Wyeth v. Levine that would have held drug companies largely immune from state law. Had this dissent prevailed, states would be powerless to protect women like Levine from drug defects or defective drug labels discovered after the Food and Drug Administration approves a drug for use.
  • Protecting rogue banks: Roberts joined a dissent in a similar case, Cuomo v. Clearinghouse, arguing that federal regulators properly gave the banking industry broad immunity from state law—despite no legal basis for doing so. Had Roberts’s views carried just one more vote, state fair-lending laws and many other consumer banking protections would have effectively ceased to exist.
  • Justice for sale: After A.T. Massey Coal Company—the same company whose negligent safety record led to the death of 29 miners in a recent explosion—lost a $50 million verdict, its CEO paid $3 million to elect a sympathetic justice to a state supreme court. This justice then cast the deciding vote overturning the verdict against Massey—a 1,667 percent return on the CEO’s investment. Roberts’s dissent in Caperton v. Massey said this bought-and-paid-for judge was under no obligation to recuse himself from Massey’s case.
  • Deceptive marketing: Finally, Roberts voted to cut off deceptive advertising claims in Altria v. Good. In his eyes the tobacco industry should have extensive immunity from state laws preventing fraudulent marketing.

Roberts rarely finds himself in dissent since he leads a bloc of conservatives committed to protecting corporate interests. Nevertheless, his few dissenting opinions in corporate immunity cases reveal a willingness to aggrandize corporate power even more so than he already has in cases like Citizens United or Rent-a-Center.

Such zealous advocacy would be entirely appropriate were Roberts still an attorney for corporate interests. He gave up that role, however, when he became a judge. It’s time for him to live up to his promise to be modest and humble in his decision making.

By Ian Millhiser | June 28, 2010-Center For American Progress; Photo-SOURCE: AP/Nick Ut

June 28, 2010 Posted by | Supreme Court | , , , , , , , , , | Leave a comment

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